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2008 Supreme(All) 2263
[2008 (9) ADJ 145 (DB)]
ALLAHABAD HIGH COURT
BEFORE : AMITAVA LALA AND SHISHIR KUMAR, JJ.
MILKIYAT SINGH AND OTHERS, ETC. ...........Petitioners
Versus
UNION OF INDIA AND OTHERS, ETC. ............Respondents
(Civil Misc. Writ Petition Nos. 61489 of 2007 and 18556 of 2008,
decided on 26th September, 2008)
Counsel :
Ashwini Kumar Misra, Gajendra Pratap, Mahendra Rai for the Petitioners; Dr. Ashok Nigam, Addl. Solicitor General of India, Ravi Kant, Ravindra Singh, V.B. Mishra, Zafar Naiyar, Addl. Advocate General, S.P. Kesarwani, Addl. C.S.C. for the Respondents.
Headnote:(A) U.P. Co-operative Societies Act, 1965—Sections 9, 66, 67 and 2(b)—Multi State Co-operative Societies Act, 2002—Section 103(1)—U.P. Co-operative Sugar Mills Societies (Special Provision) Rules, 2007—Constitution of India—Articles 226, 19(1)(f), 19(1)(g) and 19(1)(c)—Writ petition—Maintainability of—Nullity and unenforceability of State Ordinance—Question of—Transfer of Co-operative Society to private owners—Effect—State has issued notification for considering proposal of handing over it to private owners by Ragistrar having no right under the State Law—Excepting the members of co-operative society no body is available to bring such fact into the notice of the Court that by operation of law co-operative society has become a multi-State co-operative society—Therefore, this gives a locus standi to writ petitioners to move the writ petition to obtain an order in this regard—Held, power of High Court under Article 226 of Constitution is so wide, it cannot only be restricted to a question of enforcement of fundamental rights—But, also for other purposes—Any person, who has been prejudicially affected by an act, or omission of an authority, can file a writ, even though he has no proprietary or even fiduciary interest in subject matter thereof—The words “aggrieved person” are of wide import—And should not be subjected to restricted interpretation—Thus, petitioners cannot be stopped from bringing facts to notice of Court only on ground of locus standi—Hence, question of locus standi of petitioners as raised by respondent-State, was unsustainable—And writ petition held to be maintainable by pen of petitioners. [Paras 7, 8, 11, 16, 17, 18 and 19]
(B) Fraud—And nullity—Can be raised by any body at any point of time, even in a collateral proceedings. [Para 16]
Honble Amitava Lala, J.—Since common question is involved in both the aforesaid writ petitions, the same are decided by this judgment having binding effect in both the cases. However, the Writ Petition No. 61489 of 2007 is taken as leading one.
2. The aforesaid both the writ petitions have been made with the similar prayers. However, prayers of the first writ petition are as follows :
“(i) to issue a writ, order or direction in the nature of certiorari quashing order dated 22.10.2007 (Annexure-12 to the writ petition);
(ii) to declare Ordinance No. 21 of 2007 dated 7.8.2007, as well as Uttar Pradesh Cooperative Sugar Mill Societies (Special Provisions) Rules, 2007 as amended vide notification dated 5.10.2007 (Annexure-9, 10 and 11 of the writ petition) ultra-vires to the provisions of Constitution of India and be struck down and be declared invalid piece of legislation;
(iii) to issue a writ, order or direction in the nature of mandamus restraining the respondents from, in any manner, proceeding to utilize the amount of Rs. 75 crores secured from U.P. Cooperative Bank Ltd., Lucknow, after placing the sugar mill as mortgage and the said amount of Rs. 75 crores may kindly be directed to be either returned to the bank and the mortgage deed be surrendered;
(iv) to issue any other writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the instant case so that justice be done;
(v) to award cost of the petition to the petitioners as against the respondents;
(vi) to declare U.P. Act No. 29 of 2007 that is U.P. Cooperative Societies (Amendment) Act, 2007 as ultra-vires (Annexure-38 to the writ petition);
(vii) to issue a writ, order or direction in the nature of certiorari quashing the order of the State Government dated 27.12.2007 (Annexure-39 to the writ petition);
(viii) to issue a writ, order or direction in the nature of certiorari quashing the order of the Registrar dated 28.12.2007 (Annexure-40 to the writ petition);
(ix) to issue a suitable writ, order or direction commanding upon the Central Government to constitute a high power committee comprising of technical and financial experts to go into the cause which have resulted in losses to the sugar mill society and suggest remedial measures so that the sugar mill society is run as sound business.”
3. Two preliminary issues have been raised by the contesting parties herein. According to the State, the writ petitions are not maintainable by the pen of the petitioners. According to the petitioners, when the concerned sugar factories are governed by the Multi-State Co-operative Societies Act, 2002 (hereinafter called as the ‘Act, 2002’), any ordinance under the U.P. State Act i.e. Uttar Pradesh Co-operative Societies Act, 1965 (hereinafter called as the ‘Act, 1965’) read with Uttar Pradesh Co-operative Societies (Amendment) Act, 2007 is nullity.
4. Since the first point is relating to maintainability of the writ petition, let us discuss the same at first. Admittedly, the petitioners are shareholders of Kisan Co-operative Sugar Factory Limited, Majhola, District Pilibhit, Uttar Pradesh (hereinafter called as the ‘Co-operative Society’). They contended that they are vitally interested persons in the affairs of the society itself, therefore, they have locus to file the present writ petition. A co-operative society of such persons is an independent body of joint ownership on principle only to fulfil the constitutional objective therein. The co-operative society is farmers’ co-operative society. If the proposal of the State to consider transfer of co-operative society to the private owners takes place, it will affect the interest of the farmers. The factory after formation of the co-operative society started its function since 1965. The elected body consisting of farmer members controlled and supervised the work of the sugar factory. The petitioner No. 1 was the Director of the elected body during that period. In the balance sheet of the sugar mi
